Loyola of Los Angeles Loyola of Los Angeles

Entertainment Law Review Entertainment Law Review

Volume 8 Number 1 Article 2

1-1-1988

Children in the Entertainment Industry: Are they Being Protected - Children in the Entertainment Industry: Are they Being Protected -

An Analysis of the California and New York Approaches An Analysis of the California and New York Approaches

Robert A. Martis

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Recommended Citation Recommended Citation Robert A. Martis, Children in the Entertainment Industry: Are they Being Protected - An Analysis of the California and New York Approaches, 8 Loy. L.A. Ent. L. Rev. 25 (1988). Available at: https://digitalcommons.lmu.edu/elr/vol8/iss1/2

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COMMENTSCHILDREN IN THE ENTERTAINMENT INDUSTRY: ARE

THEY BEING PROTECTED? AN ANALYSIS OFTHE CALIFORNIA AND NEW YORK

APPROACHES

I. INTRODUCTION

A Los Angeles jury recently acquitted director John Landis andfour associates of involuntary manslaughter after a helicopter crashed,killing actor Vic Morrow and two Taiwanese children.' The case, la-beled " 'The Twilight Zone' case," drew attention partly because the twochildren killed on the set of "Twilight Zone: The Movie" were hired ille-gally. The producers received permission from the children's parents,but work permits required by the State of California were not obtained.2

The closely watched case was the first in which a film director was prose-cuted for deaths occurring on the set. The five defendants would havefaced prison terms of up to five years had they been convicted.'

"The Twilight Zone" case put the spotlight on the entertainmentindustry, attracting harsh scrutiny not only of motion picture standards,4

but also raising serious doubts about the adequacy of existing labor lawsfor children. Legislation in the industry initially arose out of a concernfor stability in the field and a need to uphold the validity of contractswith minors. Later, laws were enacted to protect the child performer,

1. Grove, "Twilight Zone" Trial Ends In Acquittal, Wash. Post, May 30, 1987, § A, at 1,col. 4. Fifty-three year old Morrow and seven year old Myca Dinh Lee were decapitated, andsix year-old Renee Chen was crushed by the helicopter. "The verdict drew the curtain on oneof the most celebrated trials in Hollywood history, a 10-month epic of tears, invective hand-wringing and grandstanding, as the movie industry painfully examined its quest for even morespectacular effects." Id.

2. Gorney, Risk and Reality: Hollywood on Trial, Wash. Post, Mar. 18, 1987, § C, at 1,col. 1.

3. A Los Angeles radio station recently reported that an out-of-court settlement wasreached in the wrongful death lawsuits filed by the two children's families. Settlements arebelieved to involve a multimillion dollar sum to be paid by producers of the film. Wash. Post,June 3, 1987, § D, at 3, col. 4.

4. Id. The trial has already had some effects on motion picture safety standards. SeeSafety Bulletins for the Motion Picture and Television Industry. The Bulletins contain recom-mendations by an industry wide Labor-Management Safety Committee. For example, SafetyBulletin No. 3 is a set of guidelines for helicopter safety procedures.

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rather than their employer. This comment discusses the regulatory ap-proaches of California and New York to problems presented in the em-ployment of minor performers. Special emphasis is placed on the judicialand legislative responses to those problems. California and New Yorkwere selected, because a majority of the transactions with child entertain-ers occur in either of these states or with reference to their laws.

First, an overview of the relevant law in California and New Yorkwill be presented. Next, this comment will review the regulation of childentertainers, specifically in the areas of work permits, education, andworking hours. It will also address the issues of protection for those con-tracting with minors, safeguards for the child's interest in his or her earn-ings and the right to unemployment compensation. Finally, it willaddress the contractual rights and obligations of union membership andhow they supplement the California and New York approaches to regu-lation of children in the entertainment industry.

The purpose of this comment is to present an overview of the issuesthat can arise for those contracting with a child performer or those repre-senting them in business dealings. Where appropriate, this comment willaddress proposed changes in the law and highlight those aspects of cur-rent law which fail to recognize the changes that have occurred in theindustry since legislation in this area was originally enacted.

II. SUMMARY OF CALIFORNIA LAW

In 1927, the California Legislature enacted California Civil Codesection 36.' Section 36 was a great departure from the common law rulewhich allowed a minor to disaffirm a contract which was at one time

5. CAL. CIV. CODE § 36 (West 1982) provides in part:A. Contracts not disaffirmable. A contract not otherwise valid, entered into duringminority, cannot be disaffirmed upon that ground either during the actual minorityof the person entering into such contract, or at any time thereafter, in the followingcases:1. Necessaries. A contract to pay the reasonable value of things necessary for hissupport, or that of his family ....2. Artistic or creative services: judicial approval.

(A) A contract or agreement pursuant to which such person is employed oragrees to render artistic or creative services, or agrees to purchase, or otherwisesecure, sell, lease, license, or otherwise dispose of literary, musical or dramaticproperties (either tangible or intangible) or any rights therein for use in motionpictures, television, the production of phonograph records, the legitimate or liv-ing stage, or otherwise in the entertainment field, if the contract or agreementhas been approved by the superior court in the county in which such minorresides or is employed or, if the minor neither resides in or is employed in thisstate, if any party to the contract or agreement has its principal office in this statefor the transaction of business.(B) As used in this paragraph, "artistic or creative services" shall include, butnot be limited to, services as an actor, actress, dancer, musician, comedian,

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accepted or a contract executed by another on his or her behalf. Thisprovision provided a mechanism by which the superior court could ap-prove the minor's employment contract and make them disaffirmable bythe minor. The provision was later upheld and extended to cover optionsunder the original contract in the case of Warner Bros. Pictures v. Bro-del.6 In 1939, section 36 was expanded to its present configuration. Thelegislature added Civil Code sections 36.1 and 36.2 as a result of thefamous "Coogan Case." 7 This case involved child actor Jackie Coogan(star of "The Kid" who later went on to play Uncle Fester in "The Ad-ams Family") and his mother who spent her son's early film earnings.

Section 36.1 gives the court power to establish a trust fund or sav-ings plan as a prerequisite to the court granting approval of the contract.,Section 36.2 grants the court continuing jurisdiction over this fund.9 Asmentioned above, these provisions have remained largely unchangedsince their enactment.

At one time, The Rules and Regulations Governing the Employmentof Minors in the Entertainment Industry, 10 ("Blue Book") a booklet pre-pared by the Los Angeles Unified School District in cooperation with theDivision of Labor Standards Enforcement, governed all employmentpractices in the industry. In 1980, the California Labor Commissionheld two rounds of hearings while promulgating a new set of regulations.

singer or other performer or entertainer, or as a writer, director, producer, pro-duction executive, choreographer, composer, conductor, or designer.

Id. See also infra note 91.6. 31 Cal. 2d 766, 192 P.2d 949, cert. denied, 335 U.S. 873 (1948).7. Coogan v. Bernstein, No. C426045 (Cal. Super. Ct. 1938). See also The Work Of The

California Legislature, 13 So. CAL. L. REV. 1, 44 (1939).8. CAL. CIV. CODE § 36.1 (West 1982) provides:In any order made by the superior court approving a contract of a minor for thepurposes mentioned in § 36 or this code, the court shall have power, notwithstandingthe provisions of any other statute, to require the setting aside and preservation forthe benefit of the minor, either in a trust fund or in such other savings plan as thecourt shall approve, of such portion of the net earnings of the minor, not exceedingone-half thereof, as the court may deem just and proper, and the court may withholdapproval of such contract until the parent or parents or guardian, as the case may be,shall execute and file with the court his or their written consent to the making of suchorder. For the purposes of this section the net earnings of the minor shall be deemedto be the total sum received for the services of the minor pursuant to such contractless the following: All sums required by the law to be paid as taxes to any govern-ment or governmental agency; reasonable sums expended for the support, care, main-tenance, education, and training of the minor; fees and expenses paid in connectionwith procuring such contract or maintaining the employment of the minor; and thefees of attorneys for services rendered in connection with the contract and otherbusiness of the minor.9. See supra note 5 for text.

10. Los ANGELES UNIFIED SCHOOL DIST. IN COOPERATION WITH THE DIVISION OF LA-BOR STANDARDS ENFORCEMENT, THE RULES AND REGULATIONS GOVERNING THE EM-PLOYMENT OF MINORS IN THE ENTERTAINMENT INDUSTRY (1981) [hereinafter Blue Book].

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During the first round, it was discovered that the Blue Book had not beenproperly adopted, and therefore, did not technically have the force oflaw. Most of the industry, however, continued to follow the Blue Bookwhile awaiting a new set of guidelines. Today, the Blue Book is of littleimportance, because it has been totally replaced by the state's currentregulatory scheme, Title 8 of the California Administrative Code." Thescope of Title 8 coincides with the Labor Code's definition of a minor asany person under the age of eighteen required to be in school.' 2

California's child labor laws and administrative regulations are ap-plicable whenever minor residents, hired by a resident employer in theentertainment industry, are taken from California to work on location inanother state, pursuant to contractual relations made in California.' 3 OnApril 3, 1986 proposals to relax the strict laws governing children work-ing in California's entertainment industry went into effect.' 4 The mostsignificant changes involved lengthening the number of hours a minor isable to work and eliminating the regulation requiring the presence of astudio teacher or welfare worker on the set when performers between theages of sixteen to eighteen are performing on non-school days."

The outdated Coogan Laws have recently come under attack bythose wanting further relaxation of the contract approval provisions andthose calling for greater protection for the child performer. CaliforniaState Senator Hirschal Rosenthal's office is currently working on pro-posed legislation to revise the Coogan Laws. The backlog in the LosAngeles Superior Court and the breakdown of the "studio system"' 16

make existing approval procedures impractical. The most dramatic pro-

11. CAL. ADMIN. CODE tit. 8, § 11701-11785 (1986).12. CAL. ADMIN. CODE tit. 8, § 11750(a) (1986):For the purpose of these regulations the term "minors" shall be defined in accord-ance with § 1286(c) of the Labor Code; except that with respect to the number ofhours a minor may be allowed to work, "minor" shall include those minors under six(6) years of age.

According to § 1286(c), a "minor" is any person under the age of eighteen years who is re-quired to attend school.

13. This includes, but is not limited to, the requirement that a studio teacher be providedfor the minor's instruction and supervision. CAL. ADMIN. CODE tit. 8, § 11756 (1986).

14. Robb, California to Relax Child Labor Laws for Film Industry, VARIETY, Mar. 12,1986, vol. 332, at 2, col. 3.

15. Id.16. See Note, The Employment Contract With the Minor Under California Civil Code Sec-

tion 36: Does the "Coogan Law" Adequately Protect the Minor?, 7 Juv. J. L. 93 (1983) (au-thored by Randy Curry) [hereinafter "Curry Note"]. "[U]nder the 'Studio System,' majorproducers signed a multitude of young actors to contracts with renewal provisions. Studiosnurtured young actors to contracts with renewal provisions. Studios nurtured young actors aslong as potential for stardom existed .... In essence, actors were owned by a single studiowhich might sell or exchange rights to the young actor." Id. at 97.

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posed change in section 36 is a provision calling for automatic approvalof minors' contracts meeting certain reasonable requirements which willbe specified in the new statute. The California Legislature had until May22, 1987 in which to resolve current language disputes in order to keepthis one year bill. However, since the guilds were not able to reach anagreement by that date, the proposals became part of a two year bill.The Legislature, it seems, does not want to rush this bill which will havea significant effect on how minors' contracts are approved. 17 The processis moving very slowly as the varying approaches need to be sorted andthe often conflicting goals of those involved need to be reconciled. Aninterim hearing that was supposed to be held during the summer 1987recess of the Legislature never took place.

III. SUMMARY OF NEW YORK LAW

New York law on the abrogation of minors' disaffirmance rights isstrikingly similar to that of California. In 1961, the New York Legisla-ture modeled section 74 of its Domestic Relations Law after CaliforniaCivil Code section 36. The provision was later recodified as section 3-105of New York's General Obligation Law. In 1983, this provision was re-pealed and judicial approval for child employment contracts is now cov-ered by section 35.03 of New York's Arts and Cultural Affairs Law.'

Court approval of an employment contract pursuant to section35.03 prevents a minor from disaffirming the contract by reason of mi-nority. This section also establishes a child savings plan for earningsunder the contract. While judicial approval of the employment contractis not mandatory, it is illegal to employ any minor without a child per-former permit. 19

In addition to section 35.03, sections 3-101 and 3-107 of New York'sGeneral Obligation Law2° also pertain to minors' contracts. Section 3-101 provides, that any person who has reached the age of eighteen maynot disaffirm his or her contract on the grounds of infancy. Section 3-107covers a parent's guarantee of performance for their child. These provi-

17. Telephone interview with Matthew Laveque, California Senator Herschel Rosenthal'soffice (May 29, 1987). The Screen Actors Guild, American Federation of Television and Ra-dio Artists, Producers and Directors Guilds, and Association of Talent Agents are amongthose involved in drafting the new law aiming to keep the original intent of the Coogan laws-protection for the minor performer.

18. N.Y. ARTS & CULT. AFF. LAW § 35.03 (McKinney 1984). Section 35.03(d) furtherprovides that a court may not approve any contract in which a child entertainer is to renderservices for a term longer than three years from the "date of approval." Id.

19. N.Y. ARTS & CULT. AFF. LAW § 35.01 (McKinney 1984).

20. N.Y. GEN. OBLIG. LAW §§ 3-101-107 (McKinney 1978).

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sions, which are often of strong psychological value, do not prevent thechild from disaffirming.21 Instead, the parents are potentially liable forlarge damages resulting from their child's breach. In New York, ap-proval of the contract by the supreme court or surrogate court with juris-diction pursuant to section 35.03 is a prerequisite to the liability of aparent or guardian as a party to the contract or as a guarantor of itsperformance.22

A 1983 New York Court of Appeals case, Shields v. Gross,2 3 is arecent addition to the state's law on the abrogation of children's disaf-firmance rights. This case, addressed with greater detail below, holdsthat a child is not able to disaffirm a parent's written consent for pur-poses of New York's privacy law.24

As mentioned above, many of the New York provisions governingchildren in the entertainment industry are modeled after a comparableCalifornia provision. If the proposed legislation does eventually amendthe California Civil Code it is likely that substantially similar changeswill be made in New York. Unfortunately, the New York Legislaturehas yet to adopt many of the more detailed regulations governing childperformers that are contained in the California Administrative Code.This leaves minors covered by the New York law without many of theprotections afforded their California counterparts.

IV. THE REGULATION OF CHILD PERFORMERS

Congress, in the Fair Labors Standards Act,25 "prohibited the em-ployment of children under sixteen in any occupation and the employ-ment of any minor under eighteen in any occupation detrimental to theminor's health or well-being."' 26 Although federal law provides an excep-tion for children employed as actors or performers in motion pictures,television, radio or theatrical productions, 7 the states remain free to reg-ulate for their children in the entertainment industry. A state legislatureis able to enact laws protecting the health, safety, morals and welfare of

21. S. SHEMEL & M. W. KRASILOVSKY, THIS BUSINESS OF Music 356 (1985) [hereinafterTHIS BUSINESS OF MUSIC].

22. N.Y. GEN. OBLIG. LAW § 3-107 (McKinney 1978).23. 58 N.Y.2d 338, 461 N.Y.S.2d 254, 448 N.E.2d 108 (N.Y. Ct. App. 1983).24. Id. See N.Y. Civ. RIGHTS LAW §§ 50 and 51 (McKinney 1976)(requiring written

consent for the use of one's name, portrait or picture).25. Fair Labor Standards Act of 1938, 29 U.S.C. §§ 201-19 (1983).26. See Solk, Legal Rights and Obligations of Minors in the Entertainment Industry: The

California Approach, 4 Juv. J. LAW 78, 79-80 (1980) [hereinafter Solk] (1) citing 29 U.S.C.§§ 203(1), 221(c)(1).

27. 29 U.S.C. § 213(c)(3) (1983).

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children pursuant to its police power as long as a rational basis for theregulation exists.2"

All jurisdictions have child labor laws for their residents. In somestates, general child labor laws have been interpreted to include perform-ers within their coverage. In others, like California and New York, spe-cial statutes for child entertainers have been enacted.29 Child actors,however, are often exempt from these general state labor laws, 30 or ex-emption is conditioned upon obtaining a work permit or certificate.3" Inthe past, the states have assumed the role as protector of their childrenwhen parents fail as primary guardians of the minor's interests and wel-fare. When existing legislation can be avoided or is violated, however,the child is subject to the unchallenged judgment of his parents or em-ployers, as was the case for the two children on the set of "The TwilightZone." In the entertainment industry, mistakes in judgment can lead toharsh results, especially considering that the child's safety and financialinterests are at stake. Therefore, the state legislatures need to be particu-

28. State v. Miller, 23 Conn. Supp. 121, 177 A.2d 478 (Conn. Cir. Ct. 1961). For anexample of a state law that did not meet the rational basis test see Farias v. City of New York,101 Misc. 2d 598, 421 N.Y.S.2d 753 (N.Y. Sup. Ct. 1979). In Farias the court held that asection of New York's Education Law was an unconstitutional and improper exercise of policepower, insofar as it contained a blanket prohibition against children under sixteen performingas acrobats and gymnasts without regard to whether health, safety, or morals were involved.Section 3231(a) of New York's Education Law, repealed in 1983, enumerated those activitiesby children under sixteen which were unlawful under all circumstances. In this category wereincluded engaging or acting:

a. As a rope or wire walker, gymnast, wrestler, boxer, contortionist, rider upon ahorse or other animal (except in a nonprofessional horse show), or as an acrobat; orupon any bicycle or other mechanical vehicle or contrivance; orb. In begging or receiving or soliciting alms in any matter or under any pretense, orin any medicant occupation; or in gathering or picking rags, or collecting cigarstumps; or collecting bones or refuse from markets or streets; or in peddling; orc. In any illegal, indecent or immoral exhibition or practice; or in the exhibition ofany such child when insane, idiotic, or when presenting the appearance of any de-formity or unnatural physical formation or development; ord. In any practice or exhibition or place dangerous or injurious to the life, limb,health or morals of such child.

Id.29. Solk, supra note 26, at 80.30. See Information Packet, Screen Actors Guild Children's Committee (1983) (hereinaf-

ter SAG Information Packet]. For example, Arizona (child actors exempt from all Arizonalaws governing employment of minor); Idaho (child actors are exempt from the Idaho childlabor laws; school superintendent in charge of child's education has discretion to allow absenceand/or require tutoring); Ohio (child actors exempt from Ohio child labor laws; individualschool determines steps necessary to satisfy state's educational requirements).

31. See Id. For example, District of Columbia (child must obtain theatrical permit issuedthrough board of education); Iowa (special permit may be obtained from the Bureau of Laborwhich will exempt child from Iowa child labor regulations); Vermont (if school is in session,minor must obtain employment certificate from Labor Commissioner).

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larly diligent in monitoring their child performer labor provisions, ag-gressively making changes to coincide with changes in employmentpractices.

The following section will discuss the requirements with which anemployer must comply in order to obtain a permit to employ minors forentertainment work. Next, the comment will highlight the more detailedprovisions of the Cailfornia Administrative Code regulating educationand working hours for child performers.

A. Work Permits

Both California and New York have strict and specific statutoryschemes for dealing with the employment of children in the entertain-ment industry. As mentioned above, until recently, the Blue Book gov-erned the employment of child performers in California. The presentregulatory scheme, Title 8 of the California Administrative Code, wasamended to reflect many of the common sense provisions of the BlueBook. In fact, the Code now employs a definition of the "entertainmentindustry" very similar to that used in the Blue Book.32

Any employer who wants to employ a minor for entertainmentwork which is not hazardous or detrimental to the child's health, safety,morals or education must file an application with the Division of LaborStandards Enforcement for a "Permit to Employ Minors."33 In deter-mining what is hazardous or detrimental to "morals," within the mean-ing of the regulations, reference is given to the acts proscribed by sections311 through 314 of the California Penal Code. 34

A child who wants to be employed in the entertainment industrymust obtain an "Entertainment Work Permit."' 3

' The permit applicationcan be obtained at any of the Division District offices.36 In addition, theminor must obtain verification in writing from the appropriate school

32. CAL. ADMIN. CODE tit. 8, § 11751(a) (1986) provides:The Entertainment Industry, hereinafter referred to as the employer, shall be definedas any organization, or individual, using the services of any minor in: Motion pic-tures of any type (e.g. film, videotape, etc.), using any format (theatrical film, com-mercial, documentary, television program, etc.) by any medium (e.g. theater,television, videocassette, etc.); photography; recording; modeling; theatrical produc-tions; publicity; rodeos; circuses; musical performances; and any other performanceswhere minors perform to entertain the public.

33. CAL. ADMIN. CODE tit. 8, § 11751(b) (1986).34. Id. The acts proscribed by these sections include obscene and harmful matters, inde-

cent exposure, and other lewd or obscene conduct. CAL. PENAL CODE, §§ 311-14 (West1970).

35. CAL. ADMIN. CODE tit. 8, § 11753(a) (1986).36. Id. The minor must provide the information called for on the application: his or her

name, age, birth date, address, sex, height, weight, and color of hair and eyes.

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district, and must meet the requirements of that school district with re-spect to age, school record, attendance and health." The school recordverification must be filed concurrently with the filing of the permit appli-cation.3 8 In certain cases the Division will require a physical examina-tion of the minor to ensure that the child's physical condition permitshim to perform the work or activity called for by the "Permit to EmployMinors" and the "Entertainment Work Permit."39

The Division routinely issues an "Entertainment Work Permit" tochild performers who satisfy the requirements for a completed applica-tion. The permit, however, allows the minor to work only under theconditions prescribed by the regulations and in conformity with all provi-sions of law governing the working hours, health, safety, morals andother conditions of employment of minors. The permit is valid for up tosix months and an application for renewal must be made in the samemanner and under the same conditions as the original permit.' In cer-tain instances, employers of groups and organizations may obtain blanketpermits, rather than individual permits for each performer.4"

The misdemeanor violation of any Labor Code provision respectingchild labor, or any violation of the Administrative Regulations consti-tutes grounds for denying, suspending or revoking the work permit.42 Inaddition, if the employer discharges or discriminates in any way against astudio teacher who files a complaint with the Division about the condi-tions on the set or takes action affecting the employment of the minor forreasons of health, safety or morals, the permit holder risks loss of privi-leges.43 The Labor Code gives employers an opportunity to appeal di-rectly to the Labor Commissioner before the denial, suspension or

37. Id.38. Id.39. Id.40. Id. § 11753(b).41. Id. § 11754. A blanket permit is granted under the following conditions and/or

limitations:b. Blanket permits shall be valid only for the particular production for which issuedand only for the periods of time limited therein.c. Application for a blanket permit must be supported by satisfactory evidence thatappropriate services of studio teachers will be provided. Special arrangements maybe made for the number of studio teachers required with groups of minors numberingone hundred (100) or more.d. An application for a blanket permit must be supported by proof that the minorscovered by such permits are covered by workers' compensation insurance.e. There must be a parent or guardian for every twenty (20) minors, or fractionthereof.

Id.42. Id. § 11758.43. Id. § 11758.1.

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revocation of any permit." The Labor Commissioner will then affordthe applicant or permit holder an opportunity to request a hearing.45

Under New York Arts and Cultural Affairs Law section 35.01 it isunlawful to employ or to exhibit any child under the age of sixteen yearsin various performance activities46 unless a child performer permit hasbeen issued.47 A child performer permit can be obtained from the mayoror other chief executive officer of the city, town, or village where theexhibition, rehearsal or performance will take place.4" The mayor maythen seek enforcement assistance from the Society for the Prevention ofCruelty to Children.49 Many public performances, usually educationalor religious, are not unlawful and do not require a child performer per-mit.5 0 However, once a permit has been issued, the scope of the employ-

44. Id. § 11758.2(a).45. Id. § 11758.46. N.Y. ARTS & CULT. AFF. LAW, § 35.01(1) (McKinney 1984). The use of a child

under sixteen is prohibited in the following activities:a. In singing; or dancing; or playing upon a musical instrument; or acting, or inrehearsing for, or performing in a theatrical performance or appearing in a pageant;or as subject for use, in or for, or in connection with the making of a motion picturefilm; orb. In rehearsing for or performing in a radio or television broadcast or program.

Section 35.01 applies whether or not an admission fee is charged and whether or not the childor any other person is to be compensated. Id. See also N.Y. LAB. LAW, §§ 130(2)(a),131 (4)(b) (McKinney 1986) (generally prohibiting employment of minors under fourteen yearsof age).

47. N.Y. ARTS & CULT. AFF. LAW, § 35.01(3) (McKinney 1984). See also Mack v. Met-ropolitan Opera Assoc., Inc., 54 A.D.2d 135, 388 N.Y.S.2d 52 (N.Y. App. Div. 1976) (failureof the Opera, which employed twelve-year-old claimant to appear in children's chorus foropera performance in New York City and on spring tour to other cities, to obtain consent ofMichigan authorities for Detroit performance, did not constitute a violation of statutes gov-erning employment of child performers; hence the child was not illegally employed so as to beentitled to double recovery in worker's compensation claim).

48. N.Y. ARTS & CULT. AFF. LAW § 35.01(4) (1984). The application must be made on aprescribed form and include the following information:

a. The true and stage name and the age of the child, and the name and address ofhis parent or guardian;b. The written consent of the parent or guardian;c. The nature, time, duration, and number of performances, together with the placeand nature of the exhibition;d. A detailed description of the entire part to be taken and each and every act andthe thing to be done and performed, except that if the performance is in connectionwith a radio or television program, the application shall contain a general statementdescribing the part or parts to be taken by the child and the nature of the exhibition.

Id. § 35.01(5).49. Id. § 35.01(6).50. Id. § 35.01(2). This subdivision provides that § 35.01(1) does not apply to:[T]he participation or employment, use or exhibition of any child in a church, acad-emy or school, including a dancing or dramatic school, as part of the regular servicesor activities thereof respectively; or in the annual graduation exercises of any suchacademy or school; or in a private home; or in any place where such performance is

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ment or performance is strictly limited to that described in the permit.5"As in California, a violation of this section is a misdemeanor.52

B. Education

One of the features of California law that clearly distinguishes itfrom New York law is the California Administrative Code's clear andfirm school requirement policies. Employers must provide 3 a studioteacher54 on each call for minors from the age of fifteen days to sixteenyears.55 At one time, a studio teacher was required for all minors up tothe age of eighteen. Recent amendments to the Administrative Code,56

however, modified the rule such that a studio teacher need only be pro-vided for sixteen to eighteen year-olds when "required for the educationof the minor."57

The changes are the result of the industry lobbyists who charge thatthe California Administrative Code is not flexible enough.5" While mostsixteen and seventeen year-olds are mature enough to make importantdecisions regarding their safety and welfare, many might not have the

under the direction, control or supervision of a department of education; or in theperformance of radio or television programs in cases where the child or childrenbroadcasting do so from a school, church, academy, museum, library or other reli-gious, civic or educational institution, or for not more than two hours a week fromthe studios of a regularly licensed broadcasting company, where the performance ofthe child or children is of a nonprofessional character and occurs during hours whenattendance for instruction is not required in accordance with the education law.

Id. § 35.01(2).51. Id. § 35.01(7).52. Id. § 35.01(8). The Commissioner of Labor is authorized to prosecute violations of

§ 35.01. N.Y. LAB. LAW § 140 (McKinney 1986).53. See CAL. ADMIN. CODE tit. 8, § 11755.3 (1986)(employer must pay for studio

teacher's remuneration).54. CAL. ADMIN. CODE tit. 8, § 11755 (1986) provides:A studio teacher within the meaning of these regulations is a certificated teacher whoholds both a California Elementary and a California Secondary teaching credentialwhich are valid and current, and who has been certified by the Labor Commissioner.Certification by the Labor Commissioner shall be for a three (3) year period. Awritten examination will be required of the studio teacher by the Labor Commis-sioner at the time of certification or renewal. Such examination shall be designed toascertain the studio teacher's knowledge of the labor laws and regulations of State ofCalifornia as they apply to the employment of minors in the entertainment industry.

55. Id. § 11755.1.56. The amendments and new sections were filed on March 4, 1986 and became effective

March 17, 1986 (Register 86, No. 10).57. CAL. ADMIN. CODE tit. 8, § 11755.1 (1986). On school days, one studio teacher must

be provided for each group of ten minors or fraction thereof. On Saturdays, Sundays, holi-days, or during school vacation periods, one studio teacher must be provided for each group oftwenty minors fifteen days to sixteen years old. Id.

58. Berg, New Rules Said to Reduce Safety of Child Actors, L.A. Daily J., June 12, 1987,§ 1, at I, col. 6.

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confidence to directly confront their employers about Code violations.Vindicating their rights can be especially difficult for teen performerssince they know there are many others willing to take their place, at anyprice.

The studio teacher's role goes far beyond teaching.59 They also haveresponsibility for caring and attending to the health, safety, and moralsof the children for whom they have been hired. In discharging theseresponsibilities, the studio teacher is required to take cognizance of suchfactors as working conditions, physical surroundings, signs of the mi-nor's mental and physical fatigue and the demands placed upon the mi-nor in relation to the minor's age, agility, strength, and stamina.6" If thestudio teacher believes that conditions on a set or location present a dan-ger to the child, the teacher may refuse to allow the engagement of achild under his or her care.6 If the studio takes any such action, theirdecision may be appealed immediately to the Labor Commissioner whomay affirm or countermand such action.62

If a child works frequently, working in the same production two orthree days per week, or if a production extends for some length of time,there is reason for concern that alternating between regular school andthe studio teacher may handicap the child educationally or emotionally.Children may find it difficult to strike the proper balance between workand school. The former Blue Book exhibited greater concern for thisproblem. One Blue Book provision expressly required continuity in thechild's education.63 Another gave parents the power to refuse or replacea specific teacher, by submitting a complaint to the Los Angeles UnifiedSchool District, if the child did not work well with that teacher.

The current Code does not contain similar provisions. Thus, it isthe parent's duty to ensure continuous schooling for their children. If

59. The California Administrative Code contains provisions stipulating the amount ofschool time that must be provided for each child. CAL. ADMIN. CODE tit. 8, § 11760(d)-(f).See also Blue Book Rule II(J) (three hours of school time for minors must be provided between8:00 a.m. and 4:00 p.m., and no period of less than twenty minutes duration accepted as schooltime).

60. CAL. ADMIN. CODE tit. 8, § 11760 (1986).61. In her case against John Landis, Deputy District Attorney Lea Purwin D'Angostino

tried to emphasize the danger to the children on the set of the "Twilight Zone." She calledteacher-welfare worker Jack Tice to testify at the trial. He insisted that he was not told of thetwo children's presence on the set. Tice said he would have judged the scene involving ahelicopter and explosives unsafe for child actors and would not have permitted the fatal sceneto be shot. Deutsch, 'Twilight' Trial Dispute Focuses On Teacher; Prosecution Wants to Em-phasize Danger to Children, L.A. Daily J., Dec. 15, 1986, at 1, col. 3.

62. Id.63. Blue Book, Rule II (C)(3).

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the child works well with a specific teacher, parents should request thatthe teacher instruct the child throughout the child's career with the pro-duction company. 6' The child who works occasionally poses little threatto the established school system. If a child is working on a long-runtelevision series, however, parents must consider alternatives to the tradi-tional or private school. Professional children's school and correspon-dence school are the most popular alternatives.65 One result ofCalifornia's strict schooling requirements is that production companiestend to consider relocations in order to avoid runaway production costswhen child actors are used.6 6 As an example, New York does not haveany special schooling regulations. Yet, children working outside of Cali-fornia do not have to go unprotected. Parents or their child's attorneyshould insist on a specific clause guaranteeing a tutor on the set.67 Thevarious performers' union contracts may also contain education provi-sions that supplement state law.

C. Working Hours

There are working hour limitations which restrict not only theamount of hours that a child can work in one day, but also the hours ofemployment within the day. In California children can begin work asearly as five o'clock in the morning or work as late as ten o'clock in theevening on school nights. 68 On an evening preceding a non-school daychildren can work as late as twelve-thirty in the morning. 69 The amountof time minors are permitted at the place of employment within a twenty-four hour period is limited according to age by Title 8 of the CaliforniaAdministrative Code.70

64. See SAG Information Packet, supra note 30, at 4.65. Simon, A Parent's Guide to Education on Location, Back Stage, Apr. 4, at 31A, col. 3-

5.66. Id. at 37A.67. Id.68. CAL. LAB. LAW § 1391 (West 1971 Cum. Supp. 1988).69. Id.70. The rules are as follows:

BABIES (fifteen days to six months):Babies who have reached the age of fifteen days but have not reached the age of six

months may be permitted to remain at the place of employment for a maximum oftwo hours. The day's work shall not exceed twenty minutes and under no conditionsshall the baby be exposed to light of greater than one hundred foot candlelight inten-sity for more than thirty seconds at a time. When babies between the age of fifteendays and six weeks of age are employed, a nurse and a studio teacher must be pro-vided for each three or fewer babies. When infants from age six weeks to six monthsare employed, one nurse and one studio teacher must be provided for each ten orfewer infants.

CAL. ADMIN. CODE tit. 8, § 11760(a) (1986) (emphasis added); see also id. § 11764 (infants

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Two different time periods are relevant: the amount of time a childis allowed to be at the place of employment and the number of hours thatthey can work while they are at the place of employment. To ensurecompliance with the rigid guidelines, producers sometimes hire twinswhen a part calls for babies or small children. 7

For children of all ages, twelve hours must elapse between their mi-nor's dismissal and call time on the following day.72 If the child's regularschool starts less than twelve hours after his or her dismissal time, the

under six months not to be given medical examinations except between the hours of 9:30 a.m.and 11:30 a.m. or between 2:30 p.m. and 4:30 p.m.; work time limited to one period of consec-utive hours in any one day, either between 9:30 a.m. and 11:30 a.m. or between 2:30 p.m. and4:30 p.m.).

MINORS (six months to two years):Minors who have reached the age of six months but who have not attained the age

of two years may be permitted at the place of employment for a maximum of fourhours. Such four-hour period shall consist of not more that two hours of work; thebalance of the four-hour period shall be rest and recreation.

Id. § 11760(b).MINORS (two years to six years):Minors who have reached the age of two years but who have not attained the age

of six years may be permitted at the place of employment for a maximum of sixhours. Such six-hour period shall consist of not more than three hours of work; thebalance of the six-hour period shall be rest and recreation and/or education.

Id. § 11760(c).MINORS (six years to nine years):Minors who have reached the age of six years but have not attained the age of nine

years may be permitted at the place of employment for a maximum of eight hours.Such eight-hour period shall consist of not more than four hours of work and at leastthree hours of schooling when the minor's school is in session. The studio teachershall assure that the minor receives up to one hour of rest and recreation. On dayswhen the minor's school is not in session, working hours may be increased to sixhours, with one hour of rest and recreation.

Id. § 11760(d).MINORS (nine years to sixteen years):Minors who have reached the age of nine years but who have not attained the age

of sixteen years may be permitted at the place of employment for a maximum of ninehours. Such nine-hour period shall consist of not more than five hours of work andat least three hours of schooling when the minor's school is in session. The studioteacher shall assure that the minor receives at least one hour of rest and recreation.On days when the minor's school is not in session, working hours may be increasedto seven hours, with one hour of rest and recreation.

Id. § 11760(e).MINORS (eighteen years):Minors who have reached the age of eighteen years may be permitted at the place

of employment for a maximum of ten hours. Such ten-hour period shall consist ofnot more than six hours of work and at least three hours of schooling when theminor's school is in session, and one hour of rest and recreation. On days whenschool is not in session, working hours may be increased to not more than eighthours, with one hour of rest and recreation.

Id. § 11760(f).71. For example, twin sisters played Tabitha on "Bewitched" during the early 1970's and

twins shared a role in last year's feature film "Baby Boom."72. CAL. ADMIN. CODE tit. 8, § 11760(i).

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minor must be given instruction the following day at work.73 When chil-dren are dismissed early and are not to be picked up for several hours,they are to remain under the supervision of a teacher or welfare workeruntil picked up.74 Finally, all hours for the minor at the place of employ-ment are exclusive of a meal period and the working day may not beextended by a meal period longer than one-half hour. 5

There are few exceptions to these general rules. If emergency situa-tions arise, for example, early morning or night live television or theatri-cal productions presented after the hours beyond which a minor may notwork as prescribed by law, a request may be made to the Labor Commis-sioner for permission for the minor to work earlier or later.7 6 A two dayadvance notice is required, however, which makes it impracticable foremployers to obtain permission in true emergency situations. For thisreason, the child's studio teacher should be empowered to grant excep-tions to the working hour provisions. These teachers are familiar withthe labor laws, and more importantly, will have worked with the child.They are in the best position to guard the child's safety. Since studioteachers are given broad authority throughout the child's employment itseems odd not to grant them the discretion to decide what is consistentwith the child's welfare in a true emergency. Another exception allowschildren between the ages of fourteen and eighteen to miss two days ofschool if they obtain permission from school authorities. The per-former's working hours during those two days may then be extended toeight hours each day.77

Filming a motion picture or television program often involves a cer-tain amount of travel time. The time spent traveling from a studio to alocation or from a location to a studio counts as part of the minor'sworking day. If a child is working at a distant location which requires anovernight stay, the time spent in daily transit between living quarters andthe place where the company is actually working will not count as worktime, provided that the company does not spend more than forty-fiveminutes traveling each way and furnishes the necessary transportation.78

73. Id.74. Id. § 11765.75. Id. § 11761.76. See id. § 11760(g) (each request is considered individually by the Division and must be

submitted in writing at least forty-eight hours prior to the time needed). The two childrenkilled on the set of "Twilight Zone: The Movie" were hired illegally to work at night. The lastand fatal scene was shot at 2:20 a.m., considerably past the curfew normally set for childperformers. Gorney, Risk and Reality: Hollywood on Trial, Wash. Post, Mar. 18, 1987, § C, at2, col. 4.

77. CAL. ADMIN. CODE tit. 8, § 11760(h) (1986).78. Id. § 11759(b).

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This rule is subject to reasonable changes by the studio teacher.79

Finally, all time spent in the child's home with the assistance ofmakeup or hairdressing persons employed in connection with the pro-duction counts as work time.8" No makeup person or hairdresser, how-ever, is allowed to work on minors at their home before 8:30 a.m.8 Inevery case, twelve hours must elapse between the time the minor is dis-missed on one day and the time makeup or hairdressing begins on thefollowing day.8 2

The California provisions governing child performers' workinghours are, for the most part, reasonable and well developed. The interac-tion between the California Labor Code and the general labor laws does,however, produce one unanticipated result. The Code extends the laborlaw definition of "minor" to include children under age six.8 3 Section1391, which sets the time of day that children can work, does not differ-entiate based on age. Thus, a child of three or four could lawfully beworking as late as twelve-thirty in the morning on a day preceding a non-school day. With the exception of better provisions providing for emer-gency situations and limiting the hours of the day that young childrencan work, the California provisions should remain intact. Further liber-alization of the working hours for children in the entertainment industryshould be avoided.

Like most jurisdictions, New York does not have a separate set ofworking hour limitations for child performers. But it is surprising todiscover that child performers, whose employment is governed by section35.01 of the Arts and Cultural Affairs Law, for example, those childrenwith a child performer permit, are excepted from the working hour re-strictions placed on other children their age. 4 Presumably, the amountof hours of the day that a child may work could be limited by the officialgranting the work permit pursuant to section 35.01. Nevertheless, theNew York Legislature has drafted the laws in such a way to make thestate attractive to entertainment industry employers.

V. PROTECTION OF PERSONS CONTRACTING WITH MINORS

When it was originally enacted in 1872, California's nondisaf-

79. The studio teacher will consider such factors as working and transportation conditionsand ages of minors in making any such decision. Id.

80. Id. § 11763.81. Id.82. Id.83. Id. § 11750.84. N.Y. LAB. LAW §§ 130, 131, 170, 171 (McKinney 1977).

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firmance statute, Civil Code section 36,85 covered only contracts for ne-cessities. Prior to 1927, minors were able to disaffirm their contracts. Inan attempt to avoid disaffirmance, employers contracted with the childperformer's parents. Several problems existed with this scheme.16 Ini-tially it was difficult to induce the minor to conform to the terms of thecontract. Also, the contract would expire when the minor reached theage of majority 7 and the contract could not be specifically enforced.88

In 1927, the California Legislature enacted a mechanism for makingminors' contracts disaffirmable upon obtaining approval from the supe-rior court.8 9 Without such an amendment, it is unlikely that motion pic-ture employers would have spent a substantial amount of time andmoney to work with underdeveloped talent.9° A 1941 amendment ex-tended the scope of section 36 to include employment contracts in profes-sional sports. 91

85. See supra note 5.86. Curry Note, supra note 16, at 94.87. CAL. CIV. CODE § 25.1 (West 1987).The Legislature intends that any use of or reference to the words "age of majority,""adult," "minor," or words of similar intent in any instrument, order, transfer, orgovernmental communication whatsoever made in this state:a. Before March 4, 1972, shall make reference to persons 21 years of age, andb. On or after March 4, 1972 shall make reference to persons 18 years of age andolder, or younger than 18 years of age.

Id.88. Curry Note, supra note 16, at 9489. CAL. CIv. CODE § 36(b) (West 1982) provides:The approval of the superior court referred to in paragraphs (2) and (3) of subdivi-sion (a) may be given upon the petition of either party to the contract or agreementafter such reasonable notice to the other party thereto as may be fixed by said court,with opportunity to such other party to appear and be heard; and its approval whengiven shall extend to the whole of the contract or agreement, and all of the terms andprovisions thereof, including, but without being limited to, any optional or condi-tional provisions contained therein for extension, prolongation, or termination of theterm thereof.

Id.90. Solk, supra note 26, at 89. See also Matter of Prinze and Jonas, 38 N.Y.2d 570, 345

N.E.2d 295, 381 N.Y.S.2d 824 (N.Y. 1976). The major reason for the enactment of NewYork's nondisaffirmance provision "was to provide a degree of certainty for parties contractingwith infants in the entertainment industry so that the validity of such contracts would not berendered doubtful or subject to subsequent litigation concerning reasonableness, after a consid-erable expenditure of effort in part or full performance of the contract." Id. at 575, 345 N.E.2d295, 299, 381 N.Y.S.2d 824, 828.

91. CAL. CIv. CODE § 36(B)(3) (West 1982) now provides:Professional sports contracts; judicial approval. A contract or agreement pursuant towhich such person is employed or agrees to render services as a participant or playerin professional sports, including, but without being limited to, professional boxers,professional wrestlers, and professional jockeys, if the contract or agreement has beenapproved by the superior court in the county in which such minor resides or is em-ployed or, if the minor neither resides in or is employed in the state, if any party to

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The leading case under section 36 is Warner Bros. Pictures v. Bro-del.9 2 This case demonstrates the need for restrictions on the minor'sright to disaffirm a contract. The defendant, Brodel, a seventeen year-oldactress, entered into a one year exclusive performance contract with theplaintiff who possessed options to renew the contract for six one-yearperiods. The contract, including the options, was submitted and ap-proved by the superior court in accordance with section 36. Upon attain-ing majority, the actress disaffirmed the contract. The motion picturecompany sought to enjoin the actress from working with any other com-pany. The California Supreme Court granted the injunction.93 Thecourt noted that "section 36 confers upon the Superior Courts the powerby their approval of contracts of minors to remove ... the uncertaintythat otherwise attends contract obligations of a minor because of hisright of disaffirmance." '94 The entire policy behind section 36 would bethwarted if disaffirmance were merely postponed to majority.95

California's disaffirmance legislation provided the model for NewYork legislation on the same subject. First enacted in 1961, New York'slaw abrogating minors' disaffirmance rights is currently codified in sec-tion 35.03 of New York's Arts and Cultural Affairs Law.96

the contract or agreement has its principal office in the state for the transaction ofbusiness.

Id.92. 31 Cal. 2d 766, 192 P.2d 949, cert. denied, 335 U.S. 844, reh'g denied, 335 U.S. 873

(1948).93. An injunction preventing the minor from contracting elsewhere is the usual remedy

under section 36. While the courts have the power to grant specific performance, in a caseinvolving a personal service contract they are reluctant to do so because the child is not likeyto perform to the fullest extent under forced conditions. Solk, supra note 26, at 90.

94. Brodel, 31 Cal. 2d at 771, 192 P.2d at 951.95. Solk, supra note 26, at 90.96. Section 35.03 provides in pertinent part as follows:

1. A contract made by an infant or made by a parent or guardian of an infant, or acontract proposed to be so made, under which (a) the infant is to perform or renderservices as an actor, actress, dancer, musician, vocalist or other performing artist, oras a participant or player in professional sports, or (b) a person is employed to renderservices to the infant in connection with such services of the infant or in connectionwith contracts therefore, may be approved by the supreme court or the surrogate'scourt as provided in this section where an infant is a resident of this state or theservices or the infant are to be performed or rendered in this state. If the contract isso approved, the infant may not, either during his minority or upon reaching hismajority, disaffirm the contract on the ground of infancy or assert that the parent orguardian lacked authority to make the contract. A contract modified, amended orassigned after its approval under this section shall be deemed a new contract.2. (c) No contract shall be approved unless (i) the written acquiescence to suchcontract of the parent or parents having custody, or other person having custody ofthe infant, is filed in the proceeding or (ii) the court shall find that the infant isemancipated.

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New York and California laws on the subject of abrogation of mi-nor's disaffirmance rights, although similar, are different in two very im-portant respects: (1) treatment of contracts for the conveyance of achild's intellectual property rights; and (2) limitations on the duration ofcontracts subject to nondisaffirmance through court approval.97 NewYork's disaffirmance statute, unlike that of California, is silent on thetreatment of minor's contracts transferring intellectual property rights.California law expressly covers the conveyance of this important bundleof rights, making contracts for their transfer nondisaffirmable.9" NewYork's section 35.03, however, applies only to contracts where the childis to perform or render services. A commentator on child labor law,Melvin Simensky, has noted that "the potential for market instabilityover the ultimate ownership of intellectual property of minors undereighteen seems obvious." 99 He suggests, as a possible solution to the gapin New York's section 35.03, that California law and disaffirmance pro-cedures should be binding on New York entertainment contracts exe-cuted by minors under eighteen who seek to transfer intellectual propertyrights."°° The problem with this approach is that it lacks an effectiveenforcement mechanism. California's disaffirmance law might not beconsidered applicable to contracts by parties having insufficient Califor-nia contacts. 01 The most effective solution would be for the New YorkLegislature to expand the categories of contracts to which its nondisaf-firmance law applies to include the transfer of intellectual propertyrights.

The two states' laws on minors' disaffirmance rights are also distin-guishable in that New York, unlike California, places a limit on the termof the contract for which its courts will approve abrogation of disaffirm-ance rights. Under New York law, courts will recognize disaffirmancerights only as to contracts for three years or less.'0 2 Any contract con-

97. Simensky, The Right of Minors to Disaffirm Entertainment Contracts, N.Y.L.J., July12, 1986, at 5, col. 3 [hereinafter Simensky].

98. Id. CAL. CIV. CODE § 36(2)(a) (West 1985) (see supra note 85 for text).99. Simensky, supra note 97, at 5, col. 3. Section 3-101 of New York's General Obliga-

tions Law nullifies disaffirmance rights of minors over eighteen as to all of their contracts.Presumably this provision would uphold the validity of contracts conveying intellecutal prop-erty rights-but, only for those minors over the age of eighteen. Id.

100. Id.101. Significant contacts for choice-of-law purposes include: minors who reside in the state,

are employed in the state, or any party having their principle office in the state. CAL. CIV.CODE § 36(a)(2) (West 1985).

102. N.Y. ARTS & CULT. AFF. LAW § 35.03(2)(d) (McKinney 1987) provides in part:No contract shall be approved if the term during which the infant is to perform orrender services or during which a person is employed to render services to the infant,

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taining a covenant or condition purporting to extend beyond three yearsmay still be approved if the court finds the duration of such covenant orcondition to be reasonable.' 3 The court in Bright Tunes Productions v.Lee explains the rationale for the enactment of New York's three yearperiod as follows:

The purpose of this provision, as expressed by the Law Revi-sion Commission, is to limit the contract "to a period in whichthe infant's development and his future needs and capabilitiesare reasonably forseeable." (citation omitted). To bind a tal-ented infant beyond the above period may, in effect, create theopportunity to exploit him by limiting his earnings, not to hiscapacity but to the term of a contract entered into when hiscapabilities were not too apparent. Such contracts, under thecircumstances would not be reasonable and provident."4

In Bright Tunes, the court was faced with an exclusive one-year re-cording contract with four options to renew the contract for an addi-tional one-year term.1 0 5 Options are used much more frequently inmusic and sports contracts and are, thus, much more likely to violate thethree-year provision than other contracts. Today, long term contractsfor acting services of minors are uncommon. Most of the work nowavailable to child actors is short term, such as commercials.10 6

The 1983 case of Shields v. Gross"°7 completed New York's law onthe abrogation of minors' disaffirmance rights. In Shields, the court heldthat New York's privacy law,' 8 which requires written consent for theuse of one's name, portrait or picture, can be satisfied by childrenthrough means of parental consent. 0 9 The strict interpretation of sec-

including any extensions thereof by option or otherwise, extends for a period of morethan three years from the date of approval of the contract.

Id.The California law does not contain the three-year limit found in the New York statute,

and there may be approval of a term of employment up to seven years. This Business of Music,supra note 20, at 355.

103. N.Y. ARTS & CULT. AFF. LAW § 35.03(2)(d) (McKinney 1987).104. 43 Misc.2d 21, 23, 249 N.Y.S.2d 632, 634 (Sup. Ct. 1964) (citing N.Y. LEG. Doc. No.

65[1], at 257 (1961)).105. Id. at 22, 249 N.Y.S.2d at 633.106. Curry Note, supra note 16, at 93.107. 461 N.Y.S.2d 254, 58 N.Y.2d 338, 488 N.E.2d 108 (N.Y. App. Div. 1983).108. N.Y. Civ. RIGHTS LAW § 51 (McKinney 1984).109. Shields' consent provided in pertinent part:

I hereby give the photographer, his legal representatives, and assigns, those forwhom the photographer is acting, and those acting with his permission, or his em-ployees, the right and permission to copyright and/or use, reuse and/or publish, andrepublish photographic pictures or portraits of me, or in which I may be distorted incharacter, or form, in conjunction with my own or a fictitious name, on reproduc-

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tion 51 of New York's Civil Rights Law stands in sharp contrast tosection 35.03 of the New York's Art and Cultural Affairs Law, underwhich parental consent, without judicial approval, cannot preventdisaffirmance.

In Shields, actress model Brooke Shields sought to disaffirm a priorunrestricted consent executed on her behalf by her mother and to enjoinphotographer Garry Gross from using photos taken of her when she wasten years old, some of which were taken when plaintiff was posed nude ina bathtub. "o The New York Court of Appeals held that Brooke Shieldscould not maintain her action against the photographer where hermother had previously given effective, unrestricted consent to future useof the photographs. "'t The court refused to void the consent because theparties failed to comply with prior approval procedures for infant's con-tracts outlined in former section 3-105 of the General ObligationsLaw. "2 The court decided that section 3-105 did not apply to childmodels. 113 The court reasoned that the sporadic nature of assignmentsand small fees from short term employment distinguished child modelsfrom child actors and athletes, thus making judicial approval inappropri-ate for modeling contracts.' The court erred in failing to recognize thecommon law right to disaffirm, absent legislative intent to the contrary.The absence of any reference in section 51 to a child's right to disaffirmstrongly indicates that the state legislature did not intend to affect thatright." 5 This was the position taken by the dissent in Shields:

I do not believe that the Legisature's intent in enacting sections50 and 51 of the Civil Rights Law was to elevate the interests ofbusiness and commercialism above the State's interest in pro-tecting its children .... The failure of the Legislature to coverchild models in this provision indicates to me that they in-

tions thereof in color, or black and white made through any media by the photogra-pher at his studio or elsewhere, for any purpose whatsoever; including the use of anyprinted matter in conjunction therewith. I hereby waive any right to inspect or ap-prove the finished photograph or advertising copy or printed matter that may be usedin conjunction therewith or to the eventual use that it might be applied.

58 N.Y.2d at 339, 448 N.E.2d at 109, 461 N.Y.S.2d at 255 (1983).110. Id.11. See id. at 345, 448 N.E.2d at 111, 461 N.Y.S.2d at 257 (under § 51, parent's consent

binding on child and no words prohibiting disaffirmance are necessary to effectuate legislativeintent).

112. See id. (N.Y. CIVIL RIGHTS LAW § 51 was repealed and its provisions are now codi-fied in N.Y. ARTS & CULT. AFF. LAW, § 35.03 (McKinney 1984)).

113. Id.114. Note, Legislative and Judicial Approaches to Minors' Contractual Rights in the En-

tertainment Industry, I ENT. & SPORTS L. J. 145, 151 (1984) [hereinafter Contractual Rights].115. Simensky, supra note 97, at 5, col. 5.

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tended child models to retain the protections afforded by thecommon-law right to disaffirm a contract." 6

The analysis of the dissent would have reached a better result. Themajority leaves the child bound by the parent's decision even if in retro-spect that choice turns out to be exploitive or detrimental to the child'sbest interests. 17 "Furthermore the child is absolutely and completelyprecluded from exercising any self-determination or free will to disaffirm,even after he or she reaches majority.""' The emphasis placed on courtapproval makes it wise for the employer to include a provision givinghim the option to terminate the contract if court approval is not ob-tained. "' This procedure not only prevents disaffirmance, but also dem-onstrates the employer's good faith should other problems develop. Yetthe fact that a contract was not approved does not render it unreasonableas a matter of law.'" ° "The duration, together with the other provisions,is relevant in determining the reasonableness of the contract. It is notnecessarily conclusive."'' Failure to obtain approval does not renderthe contract null and void. Rather, the determination of its validity ispostponed until attempted disaffirmance. 22 Currently, most short termcontracts are not approved. The importance of this will be discussed inthe next section.

VI. EARNINGS

A. Children's Savings Plan

Under sections 197'23 and 5118124 of the California Civil Code, par-ents are entitled to the earnings and services of their minor children. TheCalifornia rule is similar to the rules of many other states. The generalbasis for the rule entitling parents to their child's earnings is a perceived

116. Shields, 58 N.Y.2d at 352-53, 448 N.E.2d at 115, 461 N.Y.S.2d 261 (Jasen, Fuchsbergand Meyer, J.J. dissenting).

117. Contractual Rights, supra note 114, at 152.118. Id.119. Solk, supra note 26, at 92. Even when the contract has been approved by the court, the

court is more likely to relax enforcement of the particular provisions in the contract when achild is alleged to be the breaching party. See e.g. Mason v. Lyl Prods., 69 Cal.2d 79, 443 P.2d193, 69 Cal. Rptr. 769 (1968) (producer's discharge of a minor actress because she was unableto return in time for the beginning of afternoon shooting was considered unreasonable in lightof fact that minor became emotionally upset and, at the insistence of her mother, went homefor lunch break).

120. In re Prinze and Jonas, 38 N.Y.2d 570, 345 N.E.2d 295, 381 N.Y.S.2d 824 (1976).121. Id. at 576, 345 N.E.2d 299, 381 N.Y.S.2d 829.122. Id.123. CAL. CIV. CODE § 197 (West 1982).124. Id. § 5118.

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reciprocal obligation of the parents to support their child.'25 In 1938, itwas recognized that this policy could lead to inequitable results in theentertainment industry,' 26 when a minor's earnings frequently far ex-ceeded their parents' outlay for support. It was in large part due to thecontroversy surrounding the earnings of Jackie Coogan 127 that sections36.1 12' and 36.2 129 were added to the Civil Code. Section 36.1 gives thecourt the power to set aside up to one-half of the child's net earnings.Section 36.2 gives the superior court power to terminate or amend thetrust or savings account upon a showing of good cause.

In New York, section 35.03 of its Arts and Cultural Affairs Law setsout a similar framework for establishing a child savings plan. The courtcan withold section 35.03(1) nondisaffirmance approval under section35.03(3)(a) until the parents consent to a savings plan.' 30 Section35.03(3)(b) allows the court to set aside up to one-half of the child's netearnings. 31 Finally, section 35.03(3)(c) defines net earnings for the pur-

125. Barnett and Spradling, Enslavement in the Twentieth Century: The Right of Parents toRetain Their Children's Earnings, 5 PEPPERDINE L. REV. 673, 677 (1978) [hereinafter En-slavement ]. "The philosophy underlying §§ 197 and 5118 of the Civil Code provided the basisfor the California courts to disallow the minor's interest in a series of early cases." Id.

126. Note, Recent California Legislation in the Law of Persons, Industrial Relations, andSocial Welfare, 15 ENT. Sp. L. J. 442, 449-50 (1984). Some commentators question the par-ent's right to child earnings in areas beyond the field of dramatic art. "In view of the possibili-ties of the earnings of child prodigies in the modern world it would seem that a readjustment ofthe whole question of parental right to all the earnings of a minor child is in order." Id.

127. Coogan v. Bernstein, No.C426045 (Cal. Super. Ct. 1938) (child actor Jackie Coogan'searnings were claimed in full by his mother).

128. See supra note 8.129. CAL. CIV. CODE § 36.2 (West 1982) provides:

The superior court shall have continuing jurisdiction over any trust or othersavings plan established pursuant to section 36.1 and shall have power at any time,upon good cause shown, to order that any such trust or other savings plan shall beamended or terminated, notwithstanding the provisions of any declaration of trust orother savings plan. Such order shall be made only after such reasonable notice to thebeneficiary and to the parent or parents or guardian, if any, as may be fixed by thecourt, with opportunity to all such parties to appear and be heard.

130. N.Y. ARTS & CULT. AFF. LAW § 35.03(3)(a) (McKinney 1984) provides:The court may withold its approval of the contract until the filing of consent by

the parent or parents entitled to the earnings of the infant, or of the infant if he isentitled to his own earnings, that a part of the infant's net earnings for services per-formed or rendered during the term of the contract be set aside and saved for theinfant pursuant to the order of the court and under guardianship as provided in thissection, until he attains his majority or until further order of the court. Such consentshall not be deemed to constitute an emancipation of the infant.

131. Id. § 35.03(3)(b) provides:The court shall fix the amount or proportion of net earnings to be set aside as it

deems for the best interests of the infant, and the amount or proportion so fixed may,upon subsequent application, be modified in the discretion of the court, within thelimits of the consent given at the time the contract was approved. In fixing suchamount or proportion, consideration shall be given to the financial circumstances ofthe parent or parents entitled to the earnings of the infant and to the needs of their

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poses of the subdivision. t 2 Basically, a child's net earnings are thechild's gross earnings minus deductions for taxes, support, professionaltraining and reasonable expenses incurred in connection with thecontract.

There are several problems common to both the Coogan Laws andthe New York savings plans in their present configuration. For example,the superior court is granted jurisdiction under section 36.1 only whenthe minor's contract is submitted to the court for approval. 133 While it ispragmatic to submit a contract to the superior court in order to obtainprotection from the minor's disaffirmance rights, it is not required. Infact, because the nature of the entertainment industry has changed, fewercontracts are being approved.' 34 The business practices of the old studiosystem which initially triggered legislation abrogating minor's disaffirm-ance rights have long since passed. As one commentator noted:

The major studios no longer play father, mother, guardian, andnursemaid to child actors by signing them to multi-year con-tracts and grooming them for stardom. While long term con-tracts were prevalent, the studios made tremendousinvestments in training and publicizing these actors. The stu-dios could not risk disaffirmance when these minors learnedthey were valuable commodities and could disaffirm and signwith other studios for more money. Today [because] [t]he ma-jority of work now available to child actors is short term ...producers do not fear disaffirmance. There is little chance ofdisaffirmance because the actors want media exposure. If onedoes not want the work, another does. 135

other children, or if the infant is entitled to his own earnings and is married, to theneeds of his family. Unless the infant is at the time thereof entitled to his own earn-ings and has no dependents, the court shall not condition its approval of the contractupon consent to the setting aside of an amount or proportion in excess of one-half ofthe net earnings.

132. Id. § 35.03(3)(c) provides:For the purposes of this subdivision, net earnings shall mean the gross earnings

received for services performed or rendered by the infant during the term of thecontract, less (i) all sums required by law to be paid as taxes to any government orsubdivision thereof with respect to or by reason of such earnings; (ii) reasonable sumsto be expended for the support, care, education, training and professional manage-ment of the infant; and (iii) reasonable fees and expenses paid or to be paid in connec-tion with the proceeding, the contract and its performance.

133. By their terms the Coogan Laws do not apply to contracts executed by the child him-self, a contract executed by a parent for the child's services, or contracts executed by the childnot submitted to the superior court. In these instances absolute parental power over the child'searnings remain. CAL. CIV. CODE §§ 36 and 36.1 (West 1982).

134. Curry Note, supra note 16, at 93.135. Id.

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When contracts are not submitted for court approval, there is norequirement that a portion of the child's earnings be set aside. Therefore,fewer children today can be assured that their earnings will be protected.Even if their contracts are approved and a trust plan is established, how-ever, there is a surprising lack of ability to enforce the law.'36 Further-more, even if the maximum fifty percent of the child's earnings are setaside, that portion of the child's wages not set aside by the court remainssubject to the complete control of the parents without accountability.' 37

The importance of court approval, however, often puts pressure on theparties, employers and parents to adopt a savings plan which is fair to theminor performer. "Courts prefer to be presented with a contract alreadyproviding a satisfactory program so that their function is limited to ap-proval of a prepacked arrangement. That approval is frequently basedentirely on the expression of satisfaction of all the parties."' 138

If the proposed legislation in California is adopted, entertainmentcontracts will automatically be approved if certain "reasonable" contractterms are included. The result of such legislation is to increase thenumber of approved contracts. This benefits both the employer, who ob-tains protection from disaffirmance without having to obtain judicial ap-proval, and the child performer whose earnings will be set aside in asavings plan.

The new legislation also revises how the amount of earnings subjectto the trust is determined. A percentage of the child's gross earnings willbe set aside, rather than a percentage of the net earnings. While thischange will make the savings plan determination easier, it may lead toinequitable results. If a child is not earning much money and the parentsare spending a great amount to obtain employment for the child, settingaside fifty percent of the gross may not leave enough to compensate theparents for support. If the child is successful, the parents' share may bedisproportionate to the amount they actually spend for support. It doesnot matter what percentage of the gross is used because it will neveraccurately reflect the parents' expenses. Furthermore, requiring a judi-cial determination would undermine the advantages of automatic ap-proval. The best way to protect the child's interest in his or her earningswould be to endorse a straight net going to the parents. If taxes, support,

136. Enslavement, supra note 125, at 682. The California codes prescribe no penalties forfailure to obey the court order setting aside a portion of the minor's interest in a trust.

137. In some instances the court can determine not to establish any sort of savings plan.This may occur where the minor already possesses an adequate estate or where the minor'searnings do not exceed the parent's outlay for support of family need.

138. Solk, supra note 26, at 86.

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training, and contract-related expenses are covered first, the parentsshould not have a claim on any of the child's additional earnings.

B. Unemployment Compensation

Unemployment compensation is one area of the law in which chil-dren are not the beneficiaries of special legislation. Minors are eligiblefor unemployment if they meet the same qualifications as adult actors. 39

Initially, children must show an "attachment to the workforce" by hav-ing an agent, going on interviews or working. It is important to note,however, that the Screen Actor's Guild or agents are never considered tobe employers." The child must also be available for work14' and mustnot refuse suitable employment.' 42

The issue of availability was addressed by the court in Ashdown v.Department of Employment. 4 3 There, an eight year-old actress was de-nied unemployment benefits because the girl's mother did not register herwith Central Casting. The primary function of Central Casting is to findextra work for individuals in the motion picture industry. AlthoughCentral Casting had work available, the child's mother testified that ex-tra work was not suitable employment for her daughter, whose work inpictures involved "acting" and "[a]ll spoken parts.""' The mother fur-ther stated that the child would not have taken the standard daily pricefor extra work, "if there was no other work to be had, but they nevercalled her on that." 45 The court found that by not registering the youngactress with Central Casting, the mother practically assured herself thather daughter would not be called for extra work. 4 6 In addition, thecourt held that extra work was not substantially different from the child'spast work, and therefore, the child was ineligible for unemployment. '

The California and New York Legislatures have not provided childperformers with unemployment compensation laws which account forthe performer's unique situation. The child performer, in addition to fac-

139. First, an actor's residuals will be credited against unemployment benefits in the weekthe residual payment was received by the actor. Also, for unemployment insurance purposes,residual, rerun, reuse and holding fees are the same. They are fees generated by the use of thecommercial product and are wages within the meaning of the code. SAG Information Packet,supra note 30, at 4, § 2.

140. Id.141. CAL. UNEMP. INS. CODE § 1253(a) (West 1986).142. Id. § 1257(b).143. 135 Cal. App. 2d 291, 287 P.2d 176 (1955).144. Id. at 294, 287 P.2d at 178.145. Id.146. Id. at 297-98, 287 P.2d at 181.147. Id.

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ing the risks of infrequent employment in the entertainment industry, issubject to regulations restricting his or her working hours, especiallywhen school is in session. Thus, it is almost impossible for child actors toobtain the attachment to the workforce necessary to receive unemploy-ment benefits.

The unemployment compensation requirements for child performersshould be relaxed. The laws require a parent or guardian to accompanythe child to work each day.' 4 ' Helping the child performer find work,going to auditions and screen tests and overseeing the child's actual per-formance is a full time job for one parent. It may be difficult to compre-hend why a parent would sacrifice the income from a paying full time jobin order to assist a child actor whose only work is an occasional commer-cial or bit part. Nevertheless, parents frequently have forgone their ownjob opportunities in exchange for less income and the chance that theirchild will become a star. In cases where the child has been successful inthe past, but has since become unemployed and unable to receive unem-ployment compensation, the family suffers a severe economic loss.

VII. MINORS IN THEATRICAL UNIONS

Performers' unions play an important role in the entertainment in-dustry because it is difficult for performers to obtain employment unlessthey are union members.' 49 Both SAG and AFTRA use a standard con-tract for the employment of minors. The contract terms are intended tosupplement existing regulations for child performers in states such asCalifornia and New York.' 50 In many other states, the standard union

148. CAL. ADMIN. CODE tit. 8, § 11757 (1986). "A parent or guardian of a minor undersixteen (16) years of age must be present with and accompany such minor on the set or onlocation and be within sight or sound of said minor at all times." Id.

149. See Solk, supra note 26, at 86-87 (1980). Every actor performing under the jurisdictionof the Screen Actor's Guild [hereinafter SAG] must join the organization within thirty daysafter the first performance under its jurisdiction. This includes all minor performers; exceptchildren under four years of age. On the other hand, the American Federation of Televisionand Radio Artists [hereinafter AFTRA], requires that every actor performing under the juris-diction of AFTRA must join or pay dues and fees to the organization within thirty days of hisor her first performance. Unlike the Guild, this union covers all minors, regardless of age. Id.

150. AFTRA NATIONAL CODE OF FAIR PRACTICE FOR NETWORK TELEVISION BROAD-

CASTING, Para. 1 10.A (1985-1987) [hereinafter AFTRA Code]. The AFTRA Code providesin part:

(B)(10) Producer will comply with all applicable child labor laws governing theemployment of the minor in broadcasting, and, will keep a summary of said laws inthe production office, if such summary is readily available.

Any provision of this Section which is inconsistent and less restrictive than anyother child labor law or regulation in applicable state or other jurisdiction is deemedmodified to comply with such laws or regulations.

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contract is the only set of guidelines that exists for those who employchildren in the entertainment fields.

The guidelines were promulgated to ensure that the performance en-vironment is proper for the minor and the conditions of employment arenot detrimental to the minor's health, education, and morals. The pri-mary concern of the parent and the adults in charge of the production isto act in the best interest of the minor with due regard to the child'sage.' 5 ' The term "minor," as used in the standard performer's contracts,refers to any principal performer defined as a minor under the employ-ment laws of the state governing his or her employment, and in all casesincludes any principal performer fourteen years old or younger.' 52 Callsfor interviews and individual voice and photographic tests, fittings, ward-robe tests, makeup tests, production conferences, publicity and the like,for school-aged children are to be held after hours and completed priorto eight o'clock in the evening.' 53 Actual production calls, however, arenot subject to those limitations.' 54

Producers are required to advise the minor's parents of the termsand conditions of the employment at the time of the hiring, to the extentthey are known.' 55 Prior to the first date of the engagement, the parentsmust obtain, complete, and submit to the producer, the appropriate doc-uments relating to the employment of the minor, as required by state andlocal law.' 56

Under union contracts, like many of the existing child labor regula-tions, the parent or guardian 57 plays a major supervisory role. Theseunion contracts require that a "parent or guardian must be present at alltimes while a minor is working, and has the right, subject to productionrequirements, to be within sight and sound of the minor."' S' A parent isalso to accompany his or her child to wardrobe, makeup, hairdressingand dressing room facilities.5 9 They are not, however, to interfere with

Id. The AFTRA Code's Guidelines for the Employment of Minors are very similar to theguidelines used in the corresponding SAG agreement.

151. Id.152. Id.153. Id. at 100.A(A). Two adults must be present at and during any call involving a child

performer.154. Id.155. Id. at 100.A(B)(l).156. Id. at 100.A(BX2).157. See id. at 100.A(B)(9) (guardian must be at least eighteen years old and be the child's

legal guardian or have the written permission of the minor's parent(s) to act as guardian).158. Id. at 100.A(B)(3).159. See id. at 100.A(B)(4) (no dressing room shall be occupied simultaneously by a mi-

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the actual production.' 60 For example, parents should not bring otherchildren not employed in the same production to the studio or loca-tion. 1 ' When a minor is required to travel to a location, the producerwill usually provide the child's parents with the same transportation,lodging and meal allowance provided to the minor.

When a producer hires a minor, the producer must designate oneindividual on each set to coordinate all matters relating to the child'swelfare and must notify the parent, of the individual's name. 62 Occa-sionally, federal, state or local laws require a qualified child care profes-sional to be present on the set during the work day. If the minor is askedto perform unusual physical, athletic or acrobatic activity or stunts, thechild and the parent must represent that the minor is fully capable ofperforming the activity, and the parent must grant prior written con-sent.63 If the nature of the activity so requires, a person trained in theinvolved activity must be present at the time of production. M The pro-ducer must also supply any equipment needed or requested for safetyreasons. 165 No minor is required to work in a situation which places thechild in clear and present danger. If, after having discussed the scenewith the stunt coordinator and parent, the child believes that he or she isin danger, then the child is not required to perform in such a situation,regardless of the validity of his or her belief.1 66 Finally, the producermust provide a safe and secure place for minor performers to rest andplay. 1

67

The union contract emphasizes that employment is not to interferewith education.' 68 The employer is required to comply with all state ed-ucation laws and use its best efforts to ensure that employment does notinterfere with education. 69 Some union contracts contain provisionswhich specifically address working hours and rest time.' 70 The numberof hours that a child is allowed to work varies according to age and

nor and an adult performer or by minors of the opposite sex, but this provision does not applyto children under three).

160. Id. at 100.A(B)(3).161. Id.162. Id.163. See e.g. Screen Actors Guild, Commercial Contract, Schedule AA(9) [hereinafter SAG

Commercial Contract].164. Id.165. Id.166. See AFTRA Code, supra note 150, at 100.A(B)(6).167. Id. at 100.A(B)(5).168. Id. at 100.A(C).169. Id.170. See SAG Commercial Contract, supra note 163.

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whether or not the work day precedes a school day.17 1

Enforcement of the union contract provisions depends primarily onvoluntary compliance. Prospective employers, however, do not alwaysfollow the guidelines.172 For example, although interviews and auditionsmay not be held during school hours, prospective employers frequentlyviolate the guidelines. Unfortunately, the performers' unions are usuallynot informed about violations until much later. Furthermore, parentsare not likely to complain about violations until after they learn whetheror not their child was hired.

VIII. CONCLUSION

Federal regulation of child labor expressly excludes those minorsworking in the entertainment industry, leaving the state legislatures freeto enact their own regulations. In the two major entertainment markets,California and New York, child actors are exempt from the general statelabor laws upon obtaining a special entertainment work permit. Whileboth states place limits on the use of children in the entertainment field,California's regulatory scheme is much more protective of the child'sbest interests, particularly in the areas of working hours and educationrequirements.

Rather than setting an example for other states to follow, the Codeprovisions are under constant attack by those seeking to liberalize thestrict requirements. Unfortunately, the California legislature is facedwith the choice of further relaxing the state's child performer labor lawsor continuing to lose entertainment production work to other states andcountries. The competing interests of the directors, producers, talentagencies, parents and others calling for heightened protection of the childperformer have produced a political "tug-of-war" in the state that willnot be reconciled in the near future.

Robert A. Martis *

171. See SAG Commercial Contract, supra note 163, at schedule AA(8).172. Informal interview with Don Gaynor and Sue Braden of AFTRA/SAG, Chevy Chase,

Md. (Mar. 1987).* B.A., Arizona State University, 1985; J.D. Candidate, Georgetown University Law

Center, 1988. Author will begin working at the law firm of Paul, Hastings, Janofsky & Walkerof Los Angeles in Fall 1988.

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